TimeControlOnline Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.

BY ACCEPTING THIS AGREEMENT BY USING THE TIMECONTROLONLINE SERVICES REFERENCED BY THIS THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "CLIENT" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement is effective as of the date of you accepting this Agreement.

Definitions

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

"Client" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

"HMS" and "HMS Software" means "Heuristic Management Systems Inc., a Canadian federally incorporated company.

"Subscribed Services" means HMS Software's online time timesheet services including any updates, upgrades, support, and content (e.g., audio and visual information, documents) contained or made available to Customer by HMS Software in the course of using the services.

"Affiliates" means business concerns, corporations or organizations which are controlled in whole or in part by Client such as subsidiaries or companies in which Client has partial or complete ownership.

"Services" means the products and services that are ordered by Client and made available by HMS online via the customer login provided to Client by HMS.

"User Guides" means the online User Guide for the Services, accessible at http://tc7eval.timecontrol.org/Application/Docs/UsersGuide.pdf and the online Reference Guide accessible at: http://tc7eval.timecontrol.org/Application/Docs/RefGuide.pdf as updated from time to time.

"Users" means individuals who are authorized by Client to use the Services. Users may include but are not limited to Client's employees, consultants, contractors and agents, and third parties with which Client transacts business.

"Client Data" means all electronic data or information submitted by Client to the Subscribed Services.

Subscribed Services

The Subscribed Services are made available pursuant to this Agreement during a subscription term (one year minimum). Client agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by HMS regarding future functionality or features.

Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users. Client may grant access to its Users and may reassign access from one User to another providing it does not exceed the number of purchased User subscriptions. Additional User subscriptions may be added during the applicable subscription term at the same pricing as that of the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and the added User subscriptions shall terminate on the same date as the pre-existing subscriptions.

Fees and Payment for Subscribed Services

User Fees

Client shall pay all fees quoted. Except as otherwise specified herein, fees are based on services purchased and not actual usage, payment obligations are non-cancellable and fees paid are non-refundable and the number of User subscriptions purchased cannot be decreased during the relevant subscription term. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore fees for user subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

Invoicing and Payment

Client will provide HMS with valid and updated credit card information or other payment information as agreed to by HMS such as Electronic Fund Transfer. Client authorizes HMS to charge such credit card for all Services ordered by Client for the initial subscription term and any renewal subscription terms(s) ordered by Client. Such charges shall be made in advance, either annually or in accordance with any different billing frequency agreed to in writing by HMS. Client is responsible for maintaining complete and accurate billing and contact information and for notifying HMS of any changes to that information.

Overdue Charges

If any charges are not received from Client by the due date, then at HMS Software's discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) HMS may condition future subscription renewals on more restrictive payment terms.

Suspension of Service

If any amount owing by Client under this or any other agreement for these Services is 10 days or more overdue, HMS may, without limiting its other rights and remedies, suspend these Services to Client until such amounts are paid in full. HMS will give Client at least seven days' prior notice that Client's account is overdue, by email, fax, or in writing, before suspending services to Client.

Payment Disputes

HMS shall not exercise its rights under the Overdue Charges Section or the Suspension of Service Section above if HMS and Client are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

Taxes

Unless otherwise stated, HMS Software's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Client is responsible for paying all applicable Taxes associated with Client purchases for these services. If HMS has the legal obligation to pay or collect Taxes for which Client is responsible under this clause, the appropriate amount shall be invoiced to and paid by Client, unless Client provides HMS with a valid tax exemption certificate authorized by the appropriate taxing authority.

HMS is solely responsible for taxes assessable against it based on its income, property and employees.

Use of the Services

HMS Software Responsibilities

HMS shall (i) provide Client with basic technical support for the Subscribed Services at no additional charge and implementation services if purchased separately, (ii) use commercially reasonable efforts to make the Subscribed Services available 24 hours a day, 7 days a week, except for (a) planned downtime (of which HMS will give at least 24 hours' notice via email to the contact person specified by Client to HMS and which HMS will schedule to the extent practicable during evening hours from Monday to Thursday from 10:00 pm to 2:00 am Eastern Standard Time or weekend hours from Friday, 6:00pm Eastern Standard Time to Monday, 5:00am or (b) any unavailability caused by circumstances beyond HMS Software's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or internet service provider failures or delays and (iii) provide the Subscribed Services only in accordance with applicable laws and government regulations.

Protection of Client Data

HMS shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. HMS shall not (a) modify Client Data, (b) disclose Client Data except as compelled by law as described in the Compelled Disclosure Section below, or as expressly permitted in writing by Client, or (c) access Client Data except to provide the Services and prevent or address service or technical problems, or at Client request in connection with customer support matters.

Access to Client Data

HMS shall make available a download facility through which Client can download a complete copy of Client's data in MySQL format. Such access will be made available Client at least once per week.

Client Responsibilities

Client shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Client Data and of the means by which Client acquired Client Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify HMS promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guides and applicable laws and government regulations. Client shall (a) not make the Services available to anyone other than the Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity of performance or the Services or third-party data contained therein, use the Services to send spam or other unrequested email outside of Client's employees, or (g) attempt to gain unauthorized access to the Services or their related systems or networks.

Term and Termination

Term of Agreement

This agreement commences on the date Client accepts it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.

Term of Purchased User Subscriptions

User subscriptions purchased by Client commence on the subscription date specified on HMS Software's invoice to Client and continue for the subscription term specified therein. Unless specified in writing by HMS, subscriptions will have a minimum term of one year. Pricing for renewal term shall remain the same as during the prior term unless HMS has given Client written notice of a price increase at least 30 days before the end of such prior term, in which case the price increase shall be applicable upon renewal and thereafter. Any such pricing increase shall not exceed the greater of 5% of the pricing for the relevant Services in the immediately prior subscription term or the Canadian Consumer Price Index as defined by Statistics Canada for the most recent period to the renewal.

Termination for Cause

Either party may terminate this Agreement for cause upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration date of such period, or if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

HMS may cancel or suspend Client's use of the Subscribed Services or a portion thereof at any time if Client violates the terms of this Agreement, if HMS reasonably believes that Client's use of the Subscribed Services represents a direct or indirect threat to its network function or integrity or anyone else's use of the Subscribed Services, or if HMS is otherwise required by law to do so.

Refund or Payment upon Termination

Upon any termination for cause by Client, HMS shall refund Client any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by HMS, Client shall pay any unpaid fees covering the remainder of the subscription term after the effective date of termination. In no event shall any termination relieve Client of the obligation to pay any fees payable to HMS for the period prior to the effective date of termination.

Return of Client Data

Upon request by Client made within 30 days after the effective date of termination of a Subscribed Services subscription, HMS will make available to Client for download a file of Client's Data in MySQL format. After such 30-day period, HMS shall have no obligation to maintain or provide any of Client Data and shall thereafter, unless legally prohibited, delete all of Client Data in HMS Software's systems or otherwise in HMS Software's possession or under HMS Software's control.

Proprietary Rights

Reservation of Rights

Subject to the limited rights expressly granted hereunder, HMS reserves all rights, title and interest in and to the Subscribed Services, including all related intellectual property rights. Client acknowledges that the software that provides the Subscribed Services remains the property of HMS, and contains valuable confidential, unpublished information, including, but not limited to, algorithms, innovations, and concepts developed by HMS at great expense. The Client agrees to use its reasonable best efforts to protect this information from unauthorized reproduction, distribution, disclosure, use, or publication. No rights are granted to Client hereunder other than as expressly set forth herein.

Restrictions

Client shall not (i) permit any third party to access the Subscribed Services except as permitted herein, (ii) create derivate works based on the Subscribed Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Client's intranets or otherwise for Client's own internal business purposes, (iv) reverse engineer the Subscribed Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

Client Data

Subject to the limited rights granted by Client hereunder, HMS acquires no right, title or interest from Client or Client licensors under this Agreement in or to Client Data, including any intellectual property rights therein.

Ownership of Client Data

As between HMS and Client, Client exclusively owns all rights, title and interest in and to all of Client Data.

Warranties and Disclaimers

Our Warranties

HMS warrants that (i) HMS has validly entered into this Agreement and has the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guides, (iii) the functionality of the Services will not be materially decreased during a subscription term, and (iv) HMS will not knowingly transmit Malicious Code to Client. For any breach of this warranty, Client's exclusive remedy shall be as provided in the Termination for Cause Section and the Refund or Payment upon Termination Section above.

Client Warranties

Client warrants that it has validly entered into this Agreement and has the legal power to do so.

Disclaimer

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Limitation of Liability

Limitation of Liability

NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY CLIENT IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CLIENT. THE FOREGOING SHALL NOT LIMIT CLIENT'S PAYMENT OBLIGATIONS AS DEFINED IN THIS AGREEMENT.

Exclusion of Consequential and Related Damages

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Indemnification

Client agrees to indemnify and hold harmless HMS, its affiliates, officer, directors, employees, agents, contractors, representatives, successors and assigns from and against any claims, proceedings, actions or demands which may be brought against HMS or another of the indemnified parties and agrees to indemnify and hold HMS and the other indemnified parties harmless from and against any and all losses, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorney's fees) real or perceived, that occur, or that HMS may suffer, sustain or incur, as a result of: (i) Client's use of the Subscribed Services, or (ii) Client's breach(es) of this Agreement. Client will have sole control of the investigation, preparation, defense and settlement of any such infringement claims and HMS shall make reasonable efforts to provide cooperation and assistance in any such investigation, preparation, defense and settlement. HMS may engage separate counsel to monitor the defense at HMS's sole cost and expense.

Confidentiality

Confidentiality

HMS and Client shall treat the terms and conditions of this Agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties' business relationship with each other or as required by law.

Definition of Confidential Information

As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client Confidential Information shall include Client Data; HMS Software's Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Client Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

Protection of Confidential Information

The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior written consent.

Compelled Disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

General Provisions

Waiver

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.

Severability

If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.

Attorney Fees

Client shall pay on demand all of HMS Software's reasonable attorney fees and other costs incurred by HMS to collect any fees or charges due HMS under this Agreement following Client breach of Invoicing and Payment Section above.

Governing Law

This Agreement shall be construed and enforced in accordance with the laws of the Province of Quebec, Canada. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. The Services are protected by copyright and other intellectual property rights laws and international treaties.

Dispute resolution

Any action to enforce this Agreement must be brought in the Province of Quebec, Canada.

Assignment

This Agreement may not be assigned by either party without the prior written approval of the other party but may be assigned without consent to (i) a parent or subsidiary of either party, (ii) an acquirer of assets of either party, or (iii) a successor by merger to either party. Any purported assignment in violation of this section shall be void.

Entire Agreement

This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of such exhibit, or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Client purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

Surviving Provisions

The provisions described in the Fees and Payment for Subscribed Services Section, Proprietary Rights Section, Confidentiality Section, Disclaimer Section, Indemnification Section, Limitation of Liability Section, Refund or Payment upon Termination Section, Return of Client Data Section, Governing Law Section and the General Provisions Section shall survive any termination or expiration of this Agreement.

Language of Agreement

The parties have expressly requested that this agreement be written in the English language. Les parties ont expressément demandé que ce contrat soit rédigé en langue anglaise.